Attorney Wins Reversal in Miami Appeal Over Malpractice Claim
When Shelia Powell sued her doctor for medical malpractice for a botched surgery in Miami, she requested the doctor’s medical records. To her surprise, her doctor claimed to have no operative report – the essential record from the time period during her surgery. To her further surprise, her doctor tried to dismiss her case in Miami-Dade circuit court based on the lack of an expert affidavit as to the likelihood of negligence, a requirement in medical malpractice cases, even though she couldn’t get an expert opinion without the operative report.
But there is an exception – a medical expert affidavit is only required if a doctor provides his or her medical records. In defending against dismissal, Ms. Powell argued that the lack of operative report meant she didn’t need an expert affidavit, and in fact couldn’t obtain one, because there was nothing to form the basis of an opinion as to the doctor’s negligence. The doctor and the hospital argued that they provided all the records they had created, and that this was enough to trigger the expert-affidavit requirement. The trial court agreed and dismissed Ms. Powell’s case for failure to follow the statutory presuit requirements.
After Alexander Appellate Law P.A. was retained, we made two arguments on appeal. First, that under Florida Supreme Court case law the failure to create an operative report creates a presumption of negligence that waived the presuit expert requirement. And second, that the trial court erred in dismissing the complaint without holding an evidentiary hearing on the sufficiency of the presuit investigation.
After oral argument, the Third District Court of Appeal ruled in Ms. Powell’s favor on the second issue, but remained silent as to the first. The appellate court ruled, “[T]he trial court should have afforded the parties an evidentiary hearing to determine whether Powell ‘complied with the reasonable presuit investigation requirements of chapter 766.’” Powell v. Sampson, 46 Fla. L. Weekly D2293 (Fla. 3d DCA Oct. 20, 2021).
You can watch appellate attorney Samuel Alexander presenting oral argument on Ms. Powell’s behalf here: